Immigration Cases

Because the 9th Circuit reverses so many of the immigration (BIA) cases, a few examples will explain the absurd excuses the court accepts to allow people to remain in the United States.  Instead of requiring an entrant to establish the right to live in the United States, the 9th Circuit imposes the burden of proof to exclude or deport someone on the government.

U.S. v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014): Raya-Vaca was deported 6 times from the United States and was now in expedited removal proceedings.  According to the 9th Circuit, the IJ did not inform Raya- Vaca of the proceedings filed against him,  and that failure violates Due Process. Raya-Vaca, having been deported 6 times, should have little doubt of his awareness of the proceedings and the consequences . ” No”, said the court.  Due Process occurred, the all – purpose 9th Circuit rule that knows no boundaries and invoked by the 9th Circuit to impose public policy.

Almanza v. Holder, 771 F.3d 1184 (9th Cir 2014): Almanza was convicted under California Vehicle Code 10851(a) (permanently or temporarily taking a motor vehicle from the owner without permission).  The statute is in the alternative and the record did not reflect which kind of theft was applicable to Almanza.  The code section is one of moral turpitude for immigration purposes and subject to deportation of an alien if the vehicular theft is “permanent,”  but not if “temporary.”  But the record does not show which alternative.  So, the 9th Circuit panel remanded to the IJ to find out.

Why a remand? Let the alien submit the record to establish the theft was “temporary.” The lawyer probably didn’t know the procedure and the 9th Circuit panel invented its own rule and provided the explanation.
Talk about academic hair splitting.  Why should an illegal alien commit a crime of theft and stay in this country based on statutory quibble or without furnishing the court with the record?

For other immigration cases go to earlier pages.

Frudden v. Pilling, 742 F.3d 1199 (9th Cir. 2014); 2014 WL 4636 41

Only the 9th Circuit writes a decision in this case that a court would consider, and resolution could have been decided in two paragraphs. In Frudden v. Pilling the plaintiffs filed a Complaint alleging their objections to a local elementary school that had decided to require a dress code for all students.  Imprinted on the shirts read the words “Tomorrow’s Leaders”, a photo of the Gophers (apparently the school motto), and an exception for students wearing the shirts who were members of the Boy Scouts or the Girl Scouts.  The plaintiff’s Complaint alleges “Tomorrow’s Followers” were excluded.  Viewpoint discrimination and not content neutral.

First, the 9th Circuit panel listed all the parental failures in their drive for a dress code at the elementary school as though they should have complied with federal election laws. Then the panel launched into a discussion whether the Complaint violated the First Amendment, contending the motto (“Tomorrow’s Leaders”) imprinted on the shirts was not content neutral, and the emphasis on Boy Scouts and Girl Scouts exclusion from wearing the shirts discriminatory. The panel remanded the case to the district court for the plaintiff to amend the Complaint and the district court to do something.

The distinct court read the pleadings and the record and wondered who was doing what.  In the plaintiff’s oral argument they conceded the motto was acceptable and only wanted other national youth organizations exempted from wearing the shirts in addition to the Scouts. The district court wondered why this case came back from the 9th Circuit on issues not in dispute and unrelated to the appellate record.  The defendants moved to clarify the record written in the 9th Circuit opinion.  Motion to clarify granted. Apparently there is no dispute at all, or if there is one, the 9th Circuit panel can explain if the parties elect to appeal the district court clarifying decision.  The elementary school students will understand the First Amendment strict scrutiny test applied by the 9th Circuit panel in this exciting case.

All the parties had to do was sit down and negotiate.  Not one of the 9th Circuit panel suggested they do that.

Maricopa Co., Arizona v. Angel Valenzuela, 135 S.Ct. 428 (2014)

The 9th Circuit has stymied every attempt by the State of Arizona to identify and return illegal aliens who illegally entered this country.  If the federal government, which insists on unqualified immigration jurisdiction, would adopt Arizona statutes the immigrant issue would be resolved.  In Maricopa County 8 years ago the citizens enacted a statute by referendum denying bail for persons arrested and detained for determination of legal status.  Obviously an illegal alien is likely to flee after arrest and incarceration if bail is unnecessary.  Not according to a 9th Circuit panel denying enforcement of the Arizona statute on an en banc hearing reversing the three judge panel that had enforced the law; 770 F.3d 772 (2014).

The naiveté of this court is incomparable.  Does anyone think a person in detention will not flee as soon as he is released because of his illegal status in the country?  The 9th Circuit court, using the old worn out, all purpose policy excuse of the Due Process Clause, invalidated the statute. The County sought a stay of the order but the Supreme Court denied  the petition. Justice Thomas commented:.

Statement of Justice THOMAS, with whom Justice SCALIA joins, respecting the denial of the application for a stay.

“Petitioner [Maricopa Co.] asks us to stay a judgment of the United States Court Appeals for the Ninth Circuit holding unconstitutional an amendment to the Arizona Constitution that the State’s citizens approved overwhelmingly in a referendum eight years ago. I join my colleagues in denying this application only because there appears to be no “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). That is unfortunate.

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (SCALIA, J., dissenting from denial of certiorari: (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decision striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ––– U.S. ––––, 135 S.Ct. 265, ––– L.Ed.2d –––– (2014); Smith v. Bishop, ––– U.S. ––––, 135 S.Ct. 271, ––– L.Ed.2d –––– (2014); Rainey v. Bostic, ––– U.S. ––––, 135 S.Ct. 286, ––– L.Ed.2d –––– (2014); Walker v. Wolf, ––– U.S. ––––, 135 S.Ct. 316, ––– L.Ed.2d –––– (2014); see also Otter v. Latta, ––– U.S. ––––, 135 S.Ct. 345, –––L.Ed.2d –––– (2014) (denying a stay); Parnell v. Hamby, ––– U.S. ––––, 135 S.Ct. 399, ––– L.Ed.2d –––– (2014) (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment. Of course, the Court has yet to act on a petition for writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.”

Justice Thomas is correct.  The referendum was enacted by Arizona voters contingent on state sovereignty.  The Supreme Court may understandably agree the federal government exercises jurisdiction on who may enter the country, but once a person is inside country borders state sovereignty exists, and the  people decide requirements for residence.


Judges and Attorneys (Back to top)
  • Scalia, Hon. Antonin Gregory


Taylor v. Cate, 772 F.3d 842 (9th Cir.2014)

Several judges on the 9th Circuit who have never tried a criminal case apparently are completely unaware of the cost and injustice of some of their opinions. The author of Taylor is in that group.

Taylor was convicted in state court of shooting and killing a store clerk in a two-man robbery.  The prosecutor could not establish which of the two men did the actual shooting and informed the jury the non shooter was an aider and abettor and as guilty as the principle.  The jury found Taylor was the shooter, and the court sentenced him as the principle.

Somehow, the DA and police subsequently discovered Taylor was not the shooter and the jury had made a mistake.  This commendable prosecutorial investigation was administratively opened and eventually the prosecutor and trial judge agreed to a reduced sentence. Taylor filed this procedure for review in the California Court of Appeal on grounds of erroneous sentencing, and on denial by the court he sought review in the California Supreme Court  The Supreme Court in its order referred only to resentencing, not the grounds Taylor alleged as “not guilty” as a principle. Remanded to the Court of Appeal.

The California Court of Appeal on remand affirmed the judgment of the trial court; the California Supreme Court denied review; the federal magistrate denied the petition for habeas corpus in district court.  The 9th Circuit panel granted the petition in an incomprehensible opinion.  When 9th Circuit judges want to reach their ideological opinions, they find their way and always for the defendant.  Taylor v. Cate is deja vu all over again.

According to the 9th Circuit majority panel, the California Supreme Court order only applied to resentencing, not Taylor’s claim on the merits that the jury had not found him guilty as an aider and abettor, avoiding AEDPA, and on remand the California Court of Appeal held only the resentencing was approved. Now the panel could review de novo.

What better and fairer resolution of sentence reduction could be found anywhere except in the 9th Circuit?  The panel ruled the jury had never convicted Taylor as an aider and abettor and he must be retried.  In the meantime, the other robber was found not guilty. This case was tried in 1987 and now both men are free unless the prosecutor can find witnesses to retry Taylor as an aider and abettor. He would be sentenced, if found guilty, to the same sentence the DA recommended and the trial court approved.The defendant was found guilty as a principle but the sentence is higher than for an aider and abettor.  Both are treated equally for purposes of conviction, and Taylor should be sentenced as an aider and abettor. Which the trial court did.

The majority panel writes that the sentencing error is not harmless and deprives the defendant of a trial as an aider and abettor under the Sixth Amendment and Due Process Clause.  The author of the panel cited a 9th Circuit case reversed by the Supreme Court in support of her decision.

The dissent seeks an equitable decision.  If the DA cannot re try this 1987 case because witnesses cannot be found, both defendants go free.  What an injustice. The trial court understood.  The DA was oriented to justice in agreeing to a reduced sentence.  All the California courts and the federal court agreed. En banc time, and if denied, petition for cert. alleging another 9th Circuit error to add to their record.

Mayes v. Premo, 766 F.3d 949 (9th Cir. 2014)

When  the Supreme Court decided Batson v. Kentucky the Justices never eliminated the AEDPA provisions requiring federal deference to state courts on habeas corpus.  Each time the Supreme Court reverses the 9th Circuit the Justices verbally lash refusal of several federal judges who fail to adhere to AEDPA.  And in each of these reviews the Court imposes stricter provisions than before.  In Mayes v. Premo the majority of the 9th Circuit panel correctly cites its role as federal habeas corpus judges: uphold the state trial court finding that the prosecutor did not excuse black jurors on racial grounds unless the record is clearly wrong.

But one judge In Mayes dissents, ignores AEDPA, and reviews the finding of the trial court de novo. In other words, he just makes up his own mind and substitutes his own judgment.  The trial judge specifically upheld the defense objection to the prosecution peremptory challenge of a potential black juror; the Oregon Court of Appeal upheld the trial judge; the Oregon Supreme Court denied review; the U.S. district court judge denied the habeas corpus petiton.  In other words, this judge ignores 12 judges with his aberrant dissent and disregard of the law.

The Batson case has made every case involving a black or Hispanic defendant a ground for appeal if the prosecutor excuses a minority juror. The dissenting judge in Mayes, who has never tried a criminal case, apparently thinks he can impose his judgment from reading a cold record. A trial lawyer excuses jurors for a variety of reasons, regardless of race.  The juror’s demeanor, their voice; the way they answer questions; the inconsistency of their answers to questions in court or their pre trial questionnaire; or just plain dislike of a potential juror.  None of this shows up on a cold appellate record.  Add to that the Supreme Court comment that the trial judge is the best observer of voir dire.  The  dissent shows complete disregard for these factors.

The amount of time taken to voir dire the jury is now incredible, and even though the evidence consists of overwhelming evidence of guilt, if one juror is arguably excused wrongfully, this judge will reverse. His decision in this case is not the first time he and others judges search the trial record in a quest for error.

Glebe v. Frost, 2014 WL 6088827 (U.S.) Reversing 9th Cir.

Another reversal of the 9th Circuit, and we are only two weeks into the current term of the Supreme Court. The Justices have already reversed five cases.  The Glebe decision is per curiam by (all members of the Supreme Court).

The defendant Frost began a series of robberies eleven your ago along with other men. At the trial he admitted participation in the robberies. Tried and convicted of the robberies and other related crimes, he appealed to the Washington Supreme Court who affirmed the conviction.  Frost filed a habeas petition in federal court and was denied.  On appeal to the 9th Circuit; the panel affirmed the order but on en banc hearing: reversed.

Frost claimed the trial judge would not let him argue failure of the trial court to allow him to argue the state did not establish corroboration of the accomplices who testified against him, and that he committed the robberies under duress.  How you can argue the absence of corroborating witnesses to committing the crime and contend you were under duress is a good question.

According to the 9th Circuit, the trial court erred in failing to allow counsel to argue inconsistent defenses. On cert., the Supreme Court did not address this question because the 9th Circuit en banc panel used their own precedent to determine whether AEDPA had been applied without any “clearly established” Supreme Court law as fully discussed in the recently decided Lopez case. The Supreme Court informed the 9th Circuit (again) it cannot rarely on its own precedents.

But the main issue revolved around the trial court decision whether refusing to allow inconsistent defenses constituted “structural error.”  Most Constitutional errors warrant reversal only if the the error is harmless.  Structural error “must infect the entire trial process and render it unfair.” In reviewing the trial record the Supreme Court concluded no infection of the entire trial process rendered it unfair, particularly when testified to his commission of the crimes (but under duress).


Wood v. Moss, 134 S.Ct. 2056 (reversing 9th Circuit)

Although the Supreme Court decided this case in May, 2014, the recent November 2014 elections remind us the Presidential election remains only 2 years away, and  events similar to those in Wood v. Moss, which occurred at the time of President Bush’s election, may recur.

President Bush was campaigning for re election in Oregon and scheduled to spend the night in a small town.  As he walked through the streets accompanied by Secret Service Agents, two groups followed him.  One group was challenging the President for re election, and another group supporting him. Secret Service Agents were cooperating with local police for crowd control and trying to keep the distance between the two groups and the President roughly the same.  At the last minute, the President changed his plans and entered a restaurant.  The Secret Service Agents re positioned the two groups in their distance from the President.

The plaintiffs alleged a First Amendment violation of “viewpoint discrimination,” contending the Agents discriminated against them because their location was disabling them from seeing the President, as distinct from the supporting groups. Incredibly, the 9th Circuit agreed, not only on the viewpoint discrimination issue but also denied the agents qualified immunity allegedly having violated  “clearly established” federal law.

A unanimous Supreme Court reversed, holding that the Agents could not necessarily equalize the distance between plaintiff’s group and the supporting group, particularly when the President changed his route without notifying them As to the qualified immunity argument,  the Justices knew of no law “clearly established” under the circumstances and unanimously reversed this absurd 9th Circuit opinion.


U.S. v. Apel, 134 S.Ct.1144 (2014) reversing (9th Circuit

Ninth Circuit reversed again.  Although defendant Apel was decided by the Supreme Court in February, 2014, and the remand issued immediately, the 9th Circuit did not get around to finally deciding the case until September, 2014. Even then the panel had to amend its opinion for reasons unclear.  The Supreme Court had basically reversed the 9th Circuit opinion and all the panel had to do was affirm the district court judgment against Apel. /wich they did in one paragraph.  U.S. v. Apel, 767 F.3d 800 (9th Cir. 2014).

The case was factually uncontested. The 9th Circuit had held federal statute 18 U.S.C. 1382 (prohibiting civilians from entering a section of a military base) inapplicable to Apel who had been repeatedly informed his conduct (throwing blood at a military sign and walking on prohibited areas) was unacceptable. The Supreme Court merely held military property is under the jurisdiction of the commander of the base and he was entitled to prevent people from committing misconduct. The Supreme Court dismissed the argument that the military had allowed an easement for civilian traffic qualified as limited federal jurisdiction.  Unanimously reversed.

Ryan v. Wood, 135 S.Ct., 21 (2014) reversing Wood v. Ryan, 759 F.3d 1076

The 9thCircuit has used every conceivable device to reverse state court death penalty decisions.  When unable to find any legal error on collateral review, the panel invokes “ineffective assistance. of counsel.”  The Supreme Court decision in Martinez v. Ryan permitting ineffective assistance challenges to post conviction counsel offered the 9th Circuit another opportunity for reversal.  But Wood v. Ryan, a 2-1 decision, exceeded all expectations in any death penalty case.

A state of Arizona jury found Wood guilty of first degree murder and sentenced him to death.  After all the customary delay incurred by the 9th Circuit on federal habeas, the panel ran out of excuses. The Arizona judge signed Wood’s death warrant, and the State scheduled an execution date.  Wood filed a petition seeking a stay of execution citing First Amendment grounds.   Yes, free speech, freedom of religion, free press and assembly forbade execution without a hearing.  According to defense counsel, Wood was entitled to know what drugs the state intended to use. The court granted the stay!

The dissenting opinion characterizes this argument as ” novel.” No, it is not novel.   There are far better denigrating words to describe this absurd tactic.  It took the Supreme Court 24 hours to vacate this complete departure from reason.  Worse yet, it adds to the 9th Circuit reversal record now at an all time high.

In succession, another 9th Circuit decision was reversed by the Supreme Court decided even before the new term began in October.   And on the opening day of the new term the Supreme Court reversed the 9th Circuit again in a per curiam opinion criticizing the appellate court for “time and again” refusing to fellow precedent. Then, one week later, the Supreme Court granted two more certs. from the 9th Circuit.

Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014)


Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.